Calcutta High Court
Chandra Kanta Kanjilal And Anr. vs Emperor On The Complaint Of Parbati ... on 18 May, 1916
Equivalent citations: 36IND. CAS.144, AIR 1916 CALCUTTA 69
JUDGMENT
1. We have heard the learned Deputy Legal Remembrancer who shows cause in this case on behalf of the Magistrate; bat we think that the proceedings now commenced under Section 188, Indian Penal Code, are defective for more than one reason. In the first place, the order as made under Section 144, Criminal Procedure Code, by the Sub-Divisional Officer on 9th December 1915 ought never to have been made. A servant of the first party presented a petition to the Sub-Divisional Officer, in which he complained that the second party had made arrangements to construct a pucca drain obliterating a pathway and for that purpose they had collected a large number of sirdars and lathials and that if the defendants obliterated the said pathway or constructed a drain there and if the first party opposed them, then there would be a likelihood of a serious breach of the peace. The Magistrate took no evidence and had nothing before him in which to make the necessary record of the material facts of the case, but on that petition alone he passed an injunction against the second party under Section 144, Criminal Procedure Code. This appears to us to be wholly irregular. The threat of a breach of the peace was from the first party and the Magistrate might well have on that petition said to the person who presented it that he would bind him down under Section 107. The proceedings were pushed through with great haste; the order is said to have been served at 9 P.M. on that day. On the 10th, on the complaint of the same man, Parbati Sarkar, the same Sub Divisional Officer passed the following order: "Summon Chandra Kanta Kanjilal, Debendra Nath Ganguli, Khider Sarkar and Chandra Lal Singh under Section 188, Indian Penal Code, for 9th January 1916." As we read this order it can only mean that the Sub-Divisional Officer was taking cognizance of the offence under Section 188, which he had clearly no power to do. There would have to be either action by him under Section 476 or an application for sanction under Section 195. It is now suggested that that order should be taken to be an order under Section 476, because on 22nd March, a long time after, the Sub-Divisional Officer transferred the case to the file of another Magistrate for trial. It may be noted in passing that the Magistrate to whom he then purported to transfer it had no jurisdiction to try the case, if the order was under Section 476. We think that the whole proceedings were irregular. The Rule must be made absolute. The order under Section 144, Criminal Procedure Code, has expired, but it is set aside as being the foundation for the proceedings under Section 186, Indian Penal Code, which are also quashed.